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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Richard Muņoz ) File No. EB-02-TP-114
2132 Shadowlawn Drive ) NAL/Acct. No. 200232700011
Naples, Florida 34112 ) FRN 0007-0496-61
)
FORFEITURE ORDER
Adopted: October 22, 2002 Released: October 24,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Richard Muņoz for willful and repeated violation
of Section 301 of the Communications Act of 1934, as amended
(``Act'').1 The noted violation involves Mr. Muņoz's
operation of a radio station on 105.1 MHz without Commission
authorization.
2. On June 5, 2002, the Commission's Tampa, Florida Field
Office (``Tampa Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Mr. Muņoz for a
forfeiture in the amount of ten thousand dollars ($10,000).2
Mr. Muņoz filed a response to the NAL on July 8, 2002.
II. BACKGROUND
3. On April 20, 2002, agents from the Tampa Office
investigated a complaint alleging that an unlicensed radio
station was transmitting on frequency 105.1 MHz in the Naples,
Florida area. A search of Commission records showed that
there was no FM radio station licensed on 105.1 MHz in Naples,
Florida. Using a mobile direction finding vehicle, the agents
detected an FM radio station operating on 105.1 MHz and traced
the station to the Tree of Life Church located at 2132
Shadowlawn Drive, Naples, Florida. The agents took field
strength measurements of the station's signal and determined
that the station required a license to operate.3 The agents
interviewed several witnesses at the church who identified
Richard Muņoz as the operator of the radio station
transmitting on 105.1 MHz. The witnesses also provided the
agents a business card identifying Richard Muņoz as the pastor
of a Spanish-language ministry called Mission Possible
Ministries and a brochure advertising a radio program called
``Mision Posible 105.1 MHz.'' Immediately thereafter, the
agents inspected the station inside the church and found
studio and transmitting equipment in operation. The agents
interviewed Mr. Muņoz, who admitted that his ministry owned
the radio station equipment and operated the station. The
agents asked Mr. Muņoz if he had a license for the station and
he replied that a friend had submitted an application to the
FCC and had advised him that he could operate the station
while the paperwork was being processed. The agents advised
Mr. Muņoz that he could not operate the station without a
license and directed him to terminate the unlicensed
operation. Mr. Muņoz requested additional time to notify his
listeners that the station had to go off the air. After the
agents again advised Mr. Muņoz that he could not operate the
station without a license and directed him to take the station
off the air, Mr. Muņoz directed another person to turn off the
transmitter. The agents then hand delivered to Mr. Muņoz a
warning letter which advised him that operation of a radio
station without a license violates Section 301 of the Act,
ordered him to cease operation of the unlicensed station
immediately, and listed the penalties for unauthorized
operation of a radio station.
4. On April 30, 2002, the Tampa Office received a
complaint alleging that an unlicensed FM station operating on
105.1 MHz in Naples, Florida was causing interference to the
reception of an FM broadcast station licensed to operate in
Naples, Florida. On May 14, 2002, using a mobile direction
finding vehicle, agents from the Tampa Office again detected
an FM radio station operating on 105.1 MHz and traced the
station to the Tree of Life Church located at 2132 Shadowlawn
Drive, Naples, Florida. The agents took field strength
measurements of the station's signal and determined that the
station required a license to operate.4 On May 17, 2002, the
Tampa Office issued a warning letter to Andrew DeLong, the
head pastor of the Tree of Life Church. The warning letter
advised Mr. DeLong that operation of a radio station without a
license violates Section 301 of the Act, ordered him to cease
operation of the unlicensed station transmitting on 105.1 MHz
immediately, and listed the penalties for unauthorized
operation of a radio station. On May 24, 2002, the Tampa
Office received a letter from Mr. DeLong. In the letter, Mr.
DeLong stated that Richard Muņoz was the operator of the radio
station transmitting on 105.1 MHz, that Mr. Muņoz leased space
for the radio station from the Tree of Life Church, and that
the Tree of Life Church had no control over the operations of
the radio station. Mr. DeLong further stated that after the
agents' inspection of the station on April 20, 2002, Mr. Muņoz
told him that it was a simple misunderstanding or a
misplacement of the paperwork and returned the station to the
air a short time later. Finally, Mr. DeLong stated that after
receiving the May 17, 2002, warning letter, he spoke with Mr.
Muņoz and Mr. Muņoz shut down the radio station.
5. On June 5, 2002, the Tampa Office issued an NAL for a
$10,000 forfeiture to Richard Muņoz for operating a radio
station without a license in willful and repeated violation of
Section 301 of the Act. In his response to the NAL, Mr. Muņoz
admits that he operated the unlicensed station on 105.1 MHz,
but requests cancellation of the forfeiture. Mr. Muņoz states
that his church, Mission Possible Ministries, had agreed to
purchase 50% of the radio station for $15,000 from Daniel
Morisma approximately eight months earlier. Mr. Muņoz
maintains that Mr. Morisma told him that there was an
application for the radio station on file at the FCC and that
the station could go on the air while they were waiting for
the application to be processed. Mr. Muņoz states that when
the FCC agents came to the station on April 20, 2002, and
directed him to shut down the unlicensed operation, he
initially shut the station down but returned the station to
the air a short time later after speaking with Mr. Morisma.
According to Mr. Muņoz, Mr. Morisma told him that Mr. Morisma
would get him the paperwork, that the station should go back
on the air because the FCC would not visit again, and that if
the FCC did visit again, it would issue a second warning
before proceeding with any penalties. Mr. Muņoz asserts that
the station had been using the time between the FCC's first
and second visit to explain to listeners that they would soon
be off the air because they had been lied to and scammed and
that the station was a week away from dismantling when the FCC
visited the station the second time. Finally, Mr. Muņoz
submits that neither he nor his church has the funds to pay
the $10,000 forfeiture.
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act,5 Section 1.80 of
the Commission's Rules (``Rules''),6 and The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (``Policy
Statement''). In examining Mr. Muņoz's response, Section
503(b) of the Act requires that the Commission take into
account the nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay,
and other such matters as justice may require.7
7. Section 301 of the Act prohibits radio operation
``except under and in accordance with this Act and with a
license in that behalf granted under the provisions of this
Act.''8 Mr. Muņoz does not dispute that he operated a radio
station without a license on April 20, 2002, and again on May
14, 2002. Accordingly, we conclude that Mr. Muņoz willfully
and repeatedly violated Section 301 of the Act.
8. Regarding Mr. Muņoz's explanation for the violation,
we think that it is unfortunate that Mr. Muņoz may have been
duped into believing that there was an application for the
radio station on file with the FCC and that he could put the
station on the air while the application was being processed.
However, Mr. Muņoz clearly knew following the inspection of
the station by FCC agents on April 20 that the station was
unlicensed. The agents orally warned Mr. Muņoz twice that the
station was unlicensed and had to be shut down. The agents
also gave Mr. Muņoz a written warning which advised him that
operation of a radio station without a license violates
Section 301 of the Act, ordered him to cease operation of the
unlicensed station immediately, and listed the penalties for
failure to do so. Mr. Muņoz simply chose to ignore these
warnings. That Mr. Muņoz may have believed that the FCC would
issue a second warning before issuing a forfeiture or other
penalty does not justify his continued violation of Section
301 or provide a basis for reduction of the forfeiture amount.
Moreover, while Mr. Muņoz claims that the station was using
the time between the FCC's first and second visit to notify
listeners that the station had to go off the air, this does
not justify the continued violation of Section 301. Under
these circumstances, we conclude that no reduction of the
forfeiture on this basis is warranted.
9. Mr. Muņoz also maintains that neither he nor his church
has the funds to pay a $10,000 forfeiture. However, as stated
in the NAL, the Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability to
pay unless the petitioner submits: (1) federal tax returns for
the most recent three-year period; (2) financial statements
prepared according to generally accepted accounting practices;
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Mr. Muņoz provided no financial documentation in support of
his request for cancellation of the forfeiture and therefore
we have no basis upon which to analyze his inability to pay
claim.
10. We have examined Mr. Muņoz's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that Mr. Muņoz willfully and repeatedly violated
Section 301 of the Act and that he has provided no basis for
rescission or reduction of the $10,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,9 Richard Muņoz IS LIABLE FOR A MONETARY FORFEITURE
in the amount of ten thousand dollars ($10,000) for willful
and repeated violation of Section 301 of the Act.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of
the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section
504(a) of the Act.10 Payment may be made by mailing a check
or similar instrument, payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The
payment should reference NAL/Acct. No. 200232700011 and FRN
0007-0496-61. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.11
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to Richard
Muņoz, 2132 Shadowlawn Drive, Naples, Florida 34112.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 U.S.C. § 301.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232700011 (Enf. Bur., Tampa Office, released June 5, 2002).
3 Under Section 15.239 of the Commission's Rules, 47 C.F.R. §
15.239, non-licensed broadcasting in the 88-108 MHz band is
permitted only if the field strength of the transmissions does
not exceed 250 ĩV/m at three meters. The agents' measurements
indicated that the station's field strength extrapolated to three
meters was 22,549,576 ĩV/m. Thus, the station operating on 105.1
MHz exceeded the permissible level for a non-licensed low-power
radio transmitter by 90,198 times.
4 The agents' measurements indicated that the station's field
strength extrapolated to three meters was 20,646,659 ĩV/m. Thus,
the station operating on 105.1 MHz exceeded the permissible level
for a non-licensed low-power radio transmitter by 82,587 times.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 301.
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.